Charter Review, Post 10

At the council meeting (after midnight) that was held Oct. 21, the city council approved the process and other things for the formation of the 2020 Charter Review Commission. Over the past year I've written about what the charter review is, how it functions, things I'd like to see taken up in the charter review, and then an article by article review of what's in the charter with some of the things that were discussed in 2010. All this was done with a goal of giving us the tools we will need to help in this process.

Whether you're one of the 7 commissioners, or just a citizen, having a good knowledge of the charter, what it is, how it works, and what kinds of changes are possible, is very important. If you're not chosen to be on the commission, I do hope that you'll attend commission meetings, provide input, and work with the commissioners to craft charter changes for the good of the entire city.

If you're thinking of apply for the commission.

Applications are now available here. They became available Oct. 22 with a deadline for application no later than November 12. Proposed bylaws are available here, the staff report detailing some of the information on the commission is here.

I have some thoughts about serving on this commission. Unlike most commissions where you meet once a month and can work on issues for, at minimum 4 years of your term, with other commissioners overlapping you on the commission so that there is a continuous flow of the work of the commission, the charter review commission will be one group working for at most one year (January to December 2020). This is a gigantic job and not to be entered into lightly. The council DID allow that those serving on other commissions would be eligible to serve on the Charter Commission because it is "temporary." I personally, expect that if I am chosen to be on the charter review that I would resign from the Library Board of Trustees (commission) to devote my time to the issues of the charter. While I understand that I wouldn't have to, I feel that it would be a disservice to the Library board to try and split the responsibilities. If one is on a commission that meets less frequently than monthly, perhaps they will be able to do both. I'd hate to see a Planning Commissioner (which meets twice a month) try to juggle the two, for example.

If you're considering applying, I would hope that you have the ability to make a commitment to working for the entire year and understanding that you can't let other things in life keep you from this important obligation. While it is schedule to hold monthly meetings, I anticipate that there will be other full commission outreach meetings, and perhaps other meetings in addition to the monthly meetings. In 2010 when we had 15 members, an ungainly large group, we broke into subcommittees to research and come to consensus on each charter article. That's 17 articles plus some proposed articles. This means that there were more than 15 subcommittees and since we could legally have up to 7 members on a subcommittee all members served on multiple committees which had their own meeting schedules. I personally, was involved in up to 3 subcommittee meetings a week.

Be ready to put your life on hold for a year and make sure that your family understands the kind of commitment this entails. If you only want to go to 8 or 10 meetings a year, please come as a part of the public. You'll still have a chance to provide input as the meetings will be announced, agendized, Brown Act meetings where there is an obligation to public input.

Fast to effect change quickly, or slow and deliberate.

Article XVII sets up the charter review commission to do its work over a one year period from January through December each decade. The results of that work is to be a charter amendment which the city council is obligated to put before the voters at the "next scheduled election." In 2010, by the time the review was finalized, the "next" election was 2012. This meant that there were close to two years from the proposed amendment to when it would go before the people.

It has been suggested by some that the charter review commission is not required to take the full year to come up with their amendment(s). If the 2020 commission should say, complete the work by June 2020, they could have something ready to be put on the ballot November 2020. However, if they take the full year, the "next" election would not be until November 2022.

At the council meeting that set up the 2020 commission, it was suggested that "urgent" changes could be done first and submitted even before the full year term of the commission is over. This would allow some really pressing issues to be put on the 2020 election in November with an additional charter amendment(s) being slated for the November 2022 election.

It was also suggested that perhaps the charter review commission should review Article XVII and change the duration of future commissions to, as an example, May 2029 through April 2030 to ensure that ballot measures would be ready for the 2030 election and that the commission isn't negatively impacted by an election cycle.

So is it better try and get something before the voters as soon as possible? Afterall it will have been over 23 years since the last change to the charter. Or to take the time to deliberate the issues and not worry about getting it done quickly, taking the full year that the law allows? These are good questions that the commission should take up at their first meeting (scheduled for January 9, 2020 at 5:50 pm in the Council Chambers). Those urgent items should clearly include those areas where the city processes have deviated from the letter of the charter to bring them into compliance.

Some thoughts on the kinds of things that should be in the charter.

In 2010, the commission perhaps tried to take on too much. Because it had been nearly 15 years since the charter had last been amended, the overly large commission tried to solve all of the perceived problems in the city through charter amendments. Putting commissions like police and ethics into the charter seemed like a good idea, but was it? The charter is the primary document for the city. It is akin to the US or State constitutions. Trying to put too much specificity into the charter might not be the best way to go. Allowing the council and the political process to solve the problems might in many instances better serve the community, rather than locking in such solutions. A police commission is finally being formulated and will probably be in existence before the charter review takes place, for example. However, if there are areas where politics will never allow for change, such as ethics where it would not be in the interest of politicians to impose regulation on themselves, then an argument can be made for it. The commission will need to be aware of these kinds of issues.

A message to the City Council . . . 

The charter review process will have a major impact on the future of the city. What the charter commission comes up with has the potential to create major changes which will be in effect for at least the next decade. Please keep all this in mind when reviewing those who apply for positions on the commission. Many will apply because they have a specific item (agenda) that they want to see implemented. My hope is that the commission which will be ultimately seated will be individuals who will soberly address ALL of the issues covered by the charter to bring forward something that voters will be happy to approve and that will have a lasting impact on the city.

I look forward to the next year.

Charter Review, Post 9

Continuing to focus on how the current charter but that might warrant consideration by the new commission, and what the last charter review determined. To view the entire current city charter go to: https://www.ci.pomona.ca.us/mm/cityhall/pdf/city_charter.pdf.

You can also view the 2010 proposed charter amendments at: http://www.johncliffordgraphics.com/ftp/Final_Report5-26-11.pdf

Article XIV - Municipal Campaign Financing and Conflict of Interest

Section 1401 is a voluntary campaign expenditure ceiling. It notes that Cal. Government Code is that campaign expenditures shall not exceed 25 cents per resident of the district in which the candidate is running and shall apply to each election, and that it will be increased by 25% of any state statue changes.

1402 explains how surplus campaign funds are dealt with. Specifically it states:

All funds that exceed election campaign expenses for public office, or the repayment of campaign loans, or expense as specified in California Government Code Sections 89519(a) and 85305(c) [Government Code §§ 89519(a) and 85305(c)] or any successor statutes, known as "surplus campaign funds" or "surplus funds," shall be turned over to the City's General Fund within ninety (90) days after withdrawal, defeat, or election to office.

This provision has been somewhat controversial as it doesn’t really allow a “carry-over” for the next campaign but specifies that surplus campaign funds “shall” be turned over to the city’s General Fund. This is one of those provisions which seems to not be the case and is not being enforced by the city.

1403 goes over conflicts of interest. It says that a councilmember “shall not cast a vote on any matter relating to any person or business entity that has contributed more than two hundred fifty dollars ($250) to all said Councilmember's City election campaigns for the current term. The vote of any Councilmember violating the above shall be invalid.” The 2010 charter commission asked to have the $250 amount raised to the $500 amount as in state code and wanted to limit that donor limit to the previous 12 months rather than the entire current term of office. However, this was defeated by the voters so presently the $250 limit is still in effect. To the best of my knowledge, this has been a little noted provision and I haven’t really seen too many recusals for items coming up where over $250 in funding was given.

Article XV - Definitions and Miscellaneous

This article specifies certain definitions to clarify what is meant in charter language.

They are:

a)      “Shall" is mandatory and "may" is permissive.

b)      "City" is the City of Pomona and "office," "department," "board," "commission," "officer," "department head" or "employee" is an office, department, board, commission, officer, department head or employee as the case may be, of the City of Pomona.

c)      "County" is the County of Los Angeles.

d)      "State" is the State of California.

e)      "Federal" is the United States of America.

f)       "Agency" or "agencies of the City" shall not include the Redevelopment Agency or the Pomona Public Financing Authority.

Note that “Shall” is mandatory. So anything that says “Shall” must be done and is not to be read as something that can be “interpreted” except as mandatory.

1502 concerns what happens if someone violates these provisions. This includes prosecution in the name of the People of California or by civil action.

Article XVI - Charter Amendment

This article covers how amendments can be made to the charter. There are three ways the charter can be changed (placed the ballot for a vote of the people). a) by city voters as an initiative (requires signature collection), b) by ordinance of the city council containing the full text of the proposed amendment and then passed by 5/7 of the total membership of the council, or c) by report of the Charter Commission created in Article XVII.

1602-3 cover elections—governed by Cal. Elections Code, and Adoption of an amendment which will take a simple majority of the4 voters and will become effective at the time in the amendment or 30 days after its adoption by voters.

Article XVII - Charter Commission

The current charter reads thus:

Sec. 1701. - Charter Commission.

Beginning in January of the year 2010, and in January of every tenth year thereafter, the Council shall appoint a Commission to consider and propose amendments to the existing Charter. No later than twelve (12) months from each inception, the Commission shall submit its proposals to the City Clerk for placement on the ballot at the next scheduled election.

This short concise paragraph was expanded to 4 additional sections covering specifying how the commission shall be constituted, the composition of the members, staff and counsel for the commission, and a violations section.

At the beginning of the commission in 2010, the commission was informed that they would only have 2 staff members present (city clerk to act as secretary and take minutes, assistant city manager for assistance). We felt that we needed to have a representative of the city attorney present since we were basically “writing law” but were informed that there was no budget for that and so we would not have legal counsel to help us through the work. The 2010 commission felt that it was incumbent to clarify all of these issues within the charter and added them as a charter amendment. As stated previously, all of the suggestions were voted down by the voters in 2012.

NEXT TIME: Another look at the 2020 Charter Review Commission Process

Charter Review, Post 8

Continuing to focus on how the current charter but that might warrant consideration by the new commission, and what the last charter review determined. To view the entire current city charter go to: https://www.ci.pomona.ca.us/mm/cityhall/pdf/city_charter.pdf

ARTICLE X – Financial Procedures

Section 1001-1005 deal with the budget beginning with the definition of the fiscal year, and moving on to how the city manager will, working with department heads, create a draft budget to be submitted to the council 45 days prior to the start of the fiscal year. It also describes what should be in the “budget message” created by the city manager to the council.

Section 1006 deals with the adoption process by the council including public noticing and modifications to the budget as presented after the public hearing. The 2010 commission suggested the following change to this section in order to enhance how the budget notification takes place:

(a) Notice and Hearing. To achieve wide attempt dissemination of information to the residents, the Council shall distribute a press release that includes information about public hearing for budget discussion and where to obtain information about the budget, to reporters at, at least one English and at least one Spanish general circulation newspaper. The Council shall also publish a notice of public hearing for budget discussion on the City's webpage and posted in the City's public notices board. a general summary of the budget in one or more general circulation newspapers. The Council is encouraged to puhlish the summary in additional media including foreign language newspapers and electronic media[.] The message notice shall include: (italics is proposed wording, strikeout text is proposed deletion)

1007 discusses amendments to the budget after adoption including supplemental budget, reduction of budget, transfer of appropriations, and the limitations set on debt service within the budget. The 2010 commission would have eliminated the section on transfer of appropriations.

The rest of the sections deal with the fact that budget items do not carry over, the prohibition of overspending a budget, etc. Sections 1010-1011 deal with the Capital Improvement budget(s) (building projects such as streets, buildings, repairs, etc.) and the special nature of the budgets for Capital Improvements which may last more than one fiscal year. The rest of the section deals with public records, bonded indebtedness, debt limit, taxes, and independent audit.

ARTICLE XI – Revenue Bonds

This article discusses the rights of the city to issue revenue bonds for capital improvements. The 2010 commission had no suggested changes to this article.

ARTICLE XII – Contracts and Purchasing

This article covers how the city shall enter into contracts. This includes a centralized purchasing system, competitive bidding, description of illegal conflicts of interest in contracting, and a prohibition of “split bidding.”

The only section that the 2010 commission saw fit to change was to add Section 1204 as:

Sec. 1204. Local Preference

In any contract, sale, purchase, or transaction to which the City is a party, preference shall be given so far as practicable to individuals and businesses within the City of Pomona insofar as the same is not in conflict with the Constitution or general laws.

ARTICLE XIII – Franchises 

This article covers how the city deals with franchises for public utilities including requirements for franchises, procedures, terms, use of eminent domain, and the city’s right to use poles. The 2010 commission did not propose any changes to this section.

NEXT TIME: The final installment on the charter (perhaps one more after that on “moving forward”).Article XIV. - Municipal Campaign Financing and Conflict of Interest,
Article XV. - Definitions and Miscellaneous,
Article XVI. - Charter Amendment and,
Article XVII. - Charter Commission.

Charter Review, Post 7

Continuing to focus on what is in the current charter and what might warrant consideration by the new commission, and what the last charter review determined. To view the entire current city charter go to: https://www.ci.pomona.ca.us/mm/cityhall/pdf/city_charter.pdf

ARTICLE VIII – Appointive Boards and Commissions

Section VIII deals with commissions and appointive boards. This sets up the rules for appointing, replacing, and other such topics. This does not describe or talk about what commissions there should be.

801a states: All appointive boards and commissions shall have the same number of members as there are members of the Council. Each Councilmember within sixty (60) days of assuming office, shall appoint one member who shall be a resident of the City to each board or commission.

It should be noted that all “appointive boards and commissions” (emphasis mine). This would mean that any non-commission board set up by the city under this charter SHALL be of this size. This might be an issue for the Fairplex “committee,” the Cultural Arts Citizen's Advisory Committee, and some other committees that have been set up. This should probably be looked at.

801b states: Such appointed term shall be for four (4) years and shall commence with the term of the appointing Councilmember. No person shall sit on a board or commission after the expiration of his or her term. In the case of a re-appointment, the appointee must be re-appointed and sworn prior to resuming such seat. In the absence of a valid appointment, no person shall sit on a board or commission.

801c states: Any mid-term vacancy shall be filled by appointment by the appropriate Councilmember within sixty (60) days to serve out the unexpired portion of the term being filled. Any appointee may be removed by a majority vote of the Council. If no appointment is made within sixty (60) days of assuming office or following a mid-term vacancy, the Mayor shall appoint a member to the vacant seat.

This (c) part of section 1 was something that the previous commission looked at long and hard. There was, at that time, a problem of councilmembers not appointing to vacancies in a timely manner so that some commissions had long periods of time where 1 or 2 seats sat vacant. In an attempt to remedy part of that problem, the proposal in 2010 was to add this wording to the end of 801c: If no appointment is made within thirty (30) days by the Mayor, then any member of the City Council may nominate a candidate for approval by the city council at the next regularly scheduled council meeting.

802 is where the charter demands the creation of a planning commission. This follows state law. The 2010 ballot measure would have added the wording a Police Commission, following planning commission.

Since there are, once again, calls for a police commission, this is something that might want to be considered.

ARTICLE IX – Elections

This article covers how the city conducts elections, when it conducts elections, referendum, initiative, and recall, and special elections.

In 2010 there was a LOT of talk about elections. First, there was the issue of the mayor being in a cycle with three council seats making three of them “safe” to run for mayor as they didn’t have to give up their seat to run for mayor, while the other three had to give up their council seat to run for mayor. There was a feeling that this was unfair to the districts (and their councilmembers) who had to make that tough choice. Our solution was to move the mayor’s race to an odd year election so that it didn’t coincide with ANY council elections. Since then the state has pretty much mandated that all elections be held on even number years (note that the school board moved from odd years to even years). A solution I’ve been thinking about, but not sure it would work, is having the mayor elected to a 6 year term. This would ensure that every other mayoral election would be “safe” for a different group of councilmembers. I can see some disadvantages to this, and especially the OTHER option of having the mayor run every 2 years.

During the decade previous to 2010 we had many elections which had a large number of candidates running (as many as 10 in one district). This meant that the vote would be split in such a way that a candidate with as low as 20% of the total vote could (and did) win the office. That meant that 80% of the voters could have been absolutely against the winner, but that person won regardless. We looked at a primary system as we used to have where the top 2 candidates faced a runoff. Since this would require two elections, it was deemed way too expensive. So we researched and found that some states and the country of Australia had a “ranked voting” or “instant runoff” system where voters ranked their choice as 1, 2, 3 . . . etc. Currently, the state of Maine and 11 cities do this kind of elections including the California cities of  San Francisco, Oakland, Berkeley, and  San Leandro. Under this system, the bottom person is eliminated and the votes for that eliminated person then go to those voters’ #2 choice, if there was still not a winner, the bottom person was eliminated and their votes went to their #2 choice unless that person had been eliminated and if so it went to their #3 choice. This continued until you had someone with over 50% approval. Even then we recognized that the county who runs our elections would not process such ballots so we specified that it would only take place when the county was able to do so. This system would have been very complex, but it does work in Maine and those cities where it has been implemented. In 2020 cities that will be added to those with this system will be Las Cruces, NM, and St. Louis Park, MN. We might want to look at the costs of primary elections and see if that is a better way to go in the future.

Another item under elections was a concern about candidates who might decide to run for two different offices at the same time. This is not that unusual, with the winner of two offices usually choosing to take one and resign from the other. This causes an immediate vacancy which usually requires a special election (increasing costs). As a solution, we proposed that a section 905 be added which would have read:

Sec. 905 Concurrent Election.

The City Clerk shall not allow the placing on the ballot of any individual for more than one city elective office.

NEXT TIME: I’ll try to speed this up so will cover more next time.

Article X. - Financial Procedures and Commissions, Article XI. - Revenue Bonds, Article XII. - Contracts and Purchasing, and Article XIII - Franchises.

Charter Review, Post 6

Continuing to focus on how the current charter with items that might warrant consideration by the new commission, and what the last charter review determined. To view the entire current city charter go to: https://www.ci.pomona.ca.us/mm/cityhall/pdf/city_charter.pdf

ARTICLE VI – City Manager

This is the part of the charter that deals with the city manager, how they’re chosen, and what their duties are among others. There were no recommendations in 2010 for this entire article.

Section 601 deals with the office and the appointment to the office. There are 5 lettered paragraphs in this section. a) states that the city manager shall be the chief administrative officer of the city (no, this is not the mayor), b) goes into how the position is appointed, that their term is indefinite and that the sole criteria is executive and administrative qualifications, c) states that the City Manager shall have compensation set by the city council and shall devote full time to City Manager duties, d) this one deserves to be quoted exactly

“Separation of Powers. Except as otherwise provided in this Charter, neither the Council nor any of its members shall interfere with the execution of the City Manager's powers and duties. The Council and its members shall deal with the administrative service under the City Manager solely through the City Manager. Councilmembers may make inquiries or discuss matters with subordinates of the City Manager; however, no Councilmember may direct staff in matters relating to setting or changing City policy”,

e) states that the city manager may be removed at any time by a majority vote of the city council.

Section 602 just states that no person who has within the past three years sat on the city council may be considered for the position of city manager. Section 603 is another long section which delineates the duties of the city manager, with Section 604 stating, “At least annually the City Manager's performance shall be reviewed by the Council.” Note that there is nothing here about an outside review process or delaying review of the city manager. It clearly states that THE COUNCIL SHALL do a review, AT LEAST annually. (emphasis mine). The final section, 605 covers a temporary city manager in the advent that the city manager cannot perform their duties for any reason.

ARTICLE V – Other Officers, Departments and Employees and General Provisions

This article covers the organization of the city with specific sections on: City Clerk, City Attorney, City Treasurer, Department and Director of Finance, Police Department and Chief, Additional Departments, and other sections on the duties of city staff.

This is one of those areas where, unfortunately, the city is out of compliance with our own city charter. Section 701 clearly states:

Sec. 701. Administrative Organization.

The Council may establish City departments, offices or agencies in addition to those created by this Charter and may prescribe their functions except that no function assigned by this Charter to a particular department, office or agency may be discontinued or, unless this Charter specifically so provides, assigned to any other. The Council shall encourage that officers, deputies, and employees of the City be or become residents of the City.

There shall be an office of City Clerk, City Attorney, City Treasurer, Director of Finance, and Chief of Police. (emphasis added).

The reason that I suggest that we're out of compliance with our charter is that, I believe, currently the same person is both finance director and city treasurer. While I understand that combining these roles was done for sound fiscal reasons, this is specifically prohibited by the charter since both City Treasurer and Director of Finance are stated as offices in the charter that the city SHALL have.

The next several sections go over subjects related to departments and policies such as: appointment of department heads, nepotism, administering oaths, retirement system, political activity, oath of office, and nondiscrimination. There is also a list of things that are prohibited for city employees including: lying, bribing, or political fundraising. Anyone convicted of such offenses shall forfeit their position and not be allowed to hold any position with the city for five years.

The last charter review had no recommended changes in any of these areas.

NEXT TIME:

Article VIII. Appointive Boards and Commissions and Article IX. Elections

Charter Review, Post 5

Continuing to focus on how the current charter but that might warrant consideration by the new commission, and what the last charter review determined. To view the entire current city charter go to: https://www.ci.pomona.ca.us/mm/cityhall/pdf/city_charter.pdf

ARTICLE IV -- Elective Officers

This is the part of the charter that deals with who is elected, how they are elected, eligibility, and what their duties are.

Section 401 deals with how many councilpersons there will be, how the mayor is elected, that council members must reside in their districts, and the sequencing of the elections. This is where in 2010, we had a desire to resquence the election so that the citywide election for mayor took place on an odd year so that it would not give an advantage to a councilperson who wished to run for mayor and wasn’t up for election that year. This had been a problem as some members would run because they had “nothing to lose,” while other candidates who might have run didn’t because they would have to give up their council seats to run. However, since 2010, the state has pretty much taken away the option of holding elections on odd numbered years as they feel that low turnouts during those years create an equality.

Section 402 deals with eligibility to run for an office (residency, etc.), while Section 403 deals with how a vacancy will be filled. This is an area that the 2010 commission had an interest in. There was an issue of a councilmember who retired, in order to get a CalPers pension resigned their council seat, and then the next day was reappointed to the same council seat. The following wording was suggested to be added to this section regarding the filling of vacancies:

A qualified person shall be defined as an individual who resides in the district where the vacancy occurred, and makes an application outlining his/her qualifications for the position. A Councilmember who resigned from the Council shall not be considered to fill their own vacancy.

This is also the section where the Planning Commission is designated as the body which will become the council in the event of the entire council not being able to perform their duties. In the previous charter this was originally the Library Board of Trustees.

Section 404 discusses compensation for mayor and council, covered expenses, and expense reporting. The only changes suggested in 2010 were minor changes to how CPI is calculated, which was something requested by the city finance department.

Section 405 concerns absences. The 2010 made the following suggested changes. Deletions are in strike through type and additions are in italics.

Any member of the Council may be absent from the City or from all regular meetings for thirty (30) consecutive days. With the consent of a majority of a quorum of the Council entered in its minutes, any member of the Council may be absent from the City or from all regular meetings of the Council for up to sixty (60) days. With the consent of a majority of a Quorum of the Council entered in its minutes, any member may be absent for a longer duration. Thereafter, any member of the Council may be absent for any longer period, provided that at least once every thirty (30) days the Council, with the consent of a majority of a quorum entered into its minutes, agrees to extend the absence. Such an extended absence may be for any good and sufficient reason including but not limited to official City business. In addition, the Council may honor those absences relating to physical injury or incapacitation, or family need. Without the required consent the Council shall declare the office vacant.

The current charter has a section 406 which elucidates the duties of the Mayor. There is no section on the duties of a councilperson. The 2010 commission added a section 406 and moved the current 406 to 407.

Section 406 City Council Members.

The City Council Members, in addition to the powers and duties prescribed elsewhere in this Charter, shall have the responsibility and duties to: Conduct business in a manner to benefit the entire City of Pomona, not strictly individual districts. areas, or constituencies; Manage discretionary funds in a manner to benefit not only district needs, but needs of the entire City of Pomona; Report to the City and the citizenry on the local and city-wide impacts of issues that occur in a councilperson 's district; Report to the council and the public the activities of commissions and boards to which the Councilmember is also a member, particularly where they have impacts on the City of Pomona; Set goals for the improvement of the entire City of Pomona as well as improvements to individual districts; Meet at least annually as the full Council, in the City of Pomona, to facilitate the establishment and/or review of goals for the City stressing improvements that benefit all citizens; Actively communicate with the commissioners and board members that they have appointed and make an effort to meet with them at least once a year.

Some of these, such as priority setting meetings, have been implemented as policy while others such as requiring councilmember district meetings might still be something to look at. The 2010 had no recommended changes to the duties of the mayor.

ARTICLE V – The Council

Article V has  13 sections covering Powers, Composition (how many and, vice mayor, etc.), Meetings, Place of Meetings, Proceedings and Quorum, Citizen Participation, Vote Requirement, Adoption of Ordinances and Resolutions, Posting, When Ordinances will Take Effect, City Codes, Codes of Technical Regulations, and Conflicts of Interest. The 2010 commission had no recommended changes for Article V.

NEXT TIME:

Article VI, City Manager and; Article VIII Other Officers, Departments and Employees and General Provisions

Charter Review, Post 4

In my past missives on the charter review process, I’ve focused on how the process works, problems with the last review commission, and issues not in the current charter but that might warrant consideration by the new commission.

The charter is divided into 17 articles: Article I. - Name and Succession; Article II. - Boundaries of City and Council Districts; Article III. - City Powers; Article IV. - Elective Officers; Article V. - The Council; Article VI. - City Manager; Article VII. - Other Officers, Departments and Employees and General Provisions; Article VIII. - Appointive Boards and Commissions; Article IX. – Elections; Article X. - Financial Procedures; Article XI. - Revenue Bonds; Article XII. - Contracts and Purchasing; Article XIII. – Franchises; Article XIV. - Municipal Campaign Financing and Conflict of Interest; Article XV. - Definitions and Miscellaneous; Article XVI. - Charter Amendment:

Article XVII. - Charter Commission. Within each article are sections which elucidate the provisions under the article.

I think I’ll be going through the charter article by article, discussing what the last review came up with and my personal comments on where I think we should go in 2020.

ARTICLE I -- Name and Succession

This one was easy. The last commission had no recommended changes. Section one covers the name of the city. Section two covers that any existing ordinances/laws in effect will not be changed unless they violate the new provisions of the charter. And Section three covers rights and liabilities of the city.

ARTICLE II -- Boundaries of City and Council Districts

This is where the 2010 commission saw started to see the need for some changes. Section one sets the city boundaries. Since this is covered by state law regarding annexation, there is really nothing to look at there. Section two just says that there will be 6 council districts. If we wish to have a larger council or if we wish to have a smaller council, this is where it would be done. I don’t recommend changes at this time but others might decide that the size of the city warrants more citizen governance or that the council is too large. Section three is about district boundaries. The 2010 commission was concerned about how boundaries are set and their recommendation (put on the ballot) was:

Where practical. The City Council may also consider the following factors: (a) topography, (b) geography, (c) cohesiveness, contiguity, integrity, and compactness or territory and (d) community of interest of the Districts. In considering the preceding factors, the Council may also consider:

1.      Community Identity-boundaries should respect, support, and build the sense of local community.

2.      Compactness and Contiguity-boundaries should enable ease of voter access to all parts of a District, and the District's area should be territorially linked.

3.      Recognition of Natural and Man-Made Features boundaries shall account for recognizable features that contribute to community identity and shape the social, political and economic life of the City.

4.      Administrative Units- Boundaries should respect census tract and precinct boundaries, although irregularities in Council District boundaries lines may result.

5.      Population Growth-Boundaries should reflect likely growth patterns and anticipate future population growth.

While not considered in 2010, I am concerned about the process of changing boundaries. In 2021, when the census data from the 2010 census was released, the then council considered the boundaries in response to shifting populations. The goal is to set boundaries which are reasonably equal in population. However, what I witnessed was an over concern by some councilmembers that their district would change in a way that they didn’t like. The result was that no district changes were made despite the fact that there was significant population differences in the districts (I don’t recall what the differences were, but the council was advised by their consultant that change should be made and they decided to leave it as it was). Perhaps the 2020 commission should consider the recommendations from 2010 as well as a trigger figure for forcing boundary changes.

ARTICLE III – City Powers

This Article elucidates the powers of the city, the extent of those powers, and intergovernmental relations. All of these were deemed to be appropriate in 2010. However we did have an impassioned plea to add the Youth and Family Master Plan to the charter. The proposed wording for a Section 4 was:

The City declares its commitment to establishing a comprehensive process that fosters a community that cares and engages all members of the community and its leaders who have a stake in promoting positive youth and family development in the City. The City endorses a process that is inclusive and based on collaboration, focuses 011 preventive measures instead of negative social behaviors that have become entrenched, is supported by proven research, is specific to our community needs and one that will be sustainable. This comprehensive process will serve to develop, monitor and sustain the Youth and Family Master Plan.

The 2020 commission might wish to reconsider this section and/or change it to reflect our current Pomona’s Promise and Compassionate City initiatives. While it probably wouldn’t really make a change to these important programs, it would codify them in our main legal document.

I think this is enough to try to digest in one sitting (or perhaps too much?). My plan is to write one of these about every 2 weeks from now until about October when it is hoped the process of selecting the 2020 commission will begin. Next up, Elective Offices and City Council.

Charter Review, Post 3

Probably one of the first things the review commission will want to decide (even before it starts looking at the intricacies of the charter itself) is what form of government we want for the city. Do we want things to remain as they are with some tweaks, or do we want to radically change the way the city operates.

Strong Mayor vs. Council Manager

General law cities are required to have 5 council members and a council-manager form of civic government. However, as a charter city, we can have as many or as few council members as we wish and can opt for a “Strong Mayor” type of government. Council-manager is where the council hires a city manager to run the day-to-day operations and, in theory, the mayor and council ONLY give direction to the city manager and have no responsibility for day-to-day operations of the city. The mayor and councilmembers should not have direct influence/direction of city staff and all operations are handled by the city manager.

So What is the Strong Mayor System?

The strong mayor system replaces the city manager with the mayor. Under this system the mayor serves as the chief officer of the city, replacing the city manager and runs all departments within the city with the power to hire, terminate, promote, etc. all city employees. S/He might opt to hire deputies and/or assistants to help in the operational side of the city. Ultimately, s/he is the ultimate authority (with council approval) of all activities within the city.

So where can we look in California to see this type of system. For research the following cities have a Strong Mayor form of city government: Fresno, Los Angeles, Oakland, San Diego, and San Francisco (Sacramento defeated a charter amendment to change to strong mayor in 2014).

When Gov. Jerry Brown was Oakland’s mayor, he successfully pushed for the executive (strong mayor) system there, arguing that it “counterbalances the parochialism of council districts.” In other words, it allows the mayor to act in the best interests of the entire city. This is an argument that we often hear in Pomona.

Going with this type of city government would require a charter amendment with voter approval.

Elected vs. Hired Officers

Pomona hires/appoints its main city officers such as City Clerk and City Attorney. This is a decision made by the city manager and approved by the city council. In our case the city attorney has been a company hired (outsourced) by the city to handle its legal issues. In the case of the city Clerk, the city hires an individual (insourced) to serve as city staff. Either the “outsource” or “insource” options are available to the city. In addition, however, is the option to elect either or both of these officers as well as other major division heads such as Police Chief and Treasurer.

Cities in California that have an elected city attorney are: Compton, Huntington Beach, Oakland, Los Angeles, San Francisco, San Diego, San Bernardino, Long Beach, Redondo Beach, San Rafael, and Chula Vista.

Of the 478 incorporated cities in California, 154 have elected city clerks. Among these are: Arcadia, Atwater, Azusa, Burbank, Coachella, Covina, El Monte, El Segundo, Fontana, Monrovia, Montebello, and Ontario, to name just a few. Interestingly, larger cities such as Los Angeles, Long Beach, San Diego, and San Francisco have appointed city clerks.

Some of the arguments concerning appointment vs. election is that it makes the positions political. However, as has been argued, these positions are political by nature and as we have recently seen, this has been very true here in Pomona. I specifically note the city attorney and city clerk because of issues with those two offices over the past year. However the charter specifies other city officers including Police Chief, Treasurer, and city finance officer. These can also be made elected offices. Below are the charter sections on each of these offices:

Sec. 702. - City Clerk. The City Clerk shall be appointed by a majority of the total membership of the City Council, shall serve at the pleasure of the Council and may be removed at any time by the affirmative vote of a majority of the total membership of the Council. The City Clerk shall give notice of Council meetings to its members and the public, keep the journal of its proceedings and perform such other duties as are prescribed by ordinance or resolution, this Charter, or by state law or as requested by the City Manager. The City Clerk shall serve as the City's Elections Official and the duties required to effect the California Elections Code shall take precedence over other duties and responsibilities.

Sec. 703. - City Attorney. There shall be a legal officer of the City, appointed by a majority of the total membership of the Council, shall serve at the pleasure of the Council, and may be removed at any time by the affirmative vote of a majority of the total membership of the Council. The City Attorney shall serve as the chief legal advisor to the Council, the City Manager, and all City departments and appointed bodies, and shall have the authority to represent the City in all civil and criminal matters, and shall perform such other duties as prescribed by this Charter, by ordinance or resolution, or as requested by the Council or City Manager.

To be and remain eligible to hold the title of City Attorney, the person must be an attorney at law, duly licensed as such under the laws of the State of California, and shall have been engaged in the practice of law for at least five (5) years prior to appointment.

Sec. 704. - City Treasurer. The Council, by a majority of the total membership of the Council, shall appoint a City Treasurer. The Treasurer shall have the responsibility for receiving and investing City funds and shall perform such other duties as prescribed by ordinance or resolution, this Charter, by state law, or as requested by the City Council through the City Manager.

Sec. 705. - Department and Director of Finance. The City Manager shall appoint a department head who shall have the title of Director of Finance. The Director of Finance shall be the chief financial officer of the City, who shall have responsibility for financial reporting, expenditure control, purchasing, bond development, preparation of the City budget for the City Manager, receiving and investing City funds, and shall perform such other duties as prescribed by ordinance or resolution, this Charter or by state law, or as requested by the City Manager or by the City Council through the City Manager.

 Sec. 706. - City Police Department/Chief of Police. (a) The City Manager, with the approval of a majority vote of the total membership of the Council, shall appoint a Police Chief whose function shall be the administration of the Pomona Police Department. The Chief of Police may not hold any other permanent or temporary managerial office. (b) Within the departments established, police services as required by law shall be performed by Pomona City Police Department employees. The City may not contract for primary police services with the County of Los Angeles or other police agencies without a vote of the City's electorate. The City may contract for ancillary police-related services without a vote of the electorate.

As the charter is reviewed I would hope that all of these items be considered. I am not advocating for any of these, but I think that at the beginning it should be considered whether they should be considered or if they are too much of a change to consider at this time.

My next post will begin an Article by Article review of what's currently in the charter, what recommendations were made 10 years ago, and things we might want to consider moving forward.

Charter Review Post 2

In the previous post I gave a brief(?) overview of the city’s Charter Review Commission. As we get ready to seat a new city council on Monday, here are my recollections of how the process occurred last time and some comments on how we can make the process better this time.

The charter review commission was created the last time the charter was amended in 1998. The charter review section of the charter is:

Sec. 1701. - Charter Commission.  

Beginning in January of the year 2010, and in January of every tenth year thereafter, the Council shall appoint a Commission to consider and propose amendments to the existing Charter. No later than twelve (12) months from each inception, the Commission shall submit its proposals to the City Clerk for placement on the ballot at the next scheduled election.

Under this section of the charter, every ten years the citizens have an opportunity to place charter amendments before the voters. In October 2009, knowing of this process, I began asking those in the city when the applications for the review commission would be available. Evidently no one in the city was aware that there was this requirement (this is the kind of thing the city attorney should be on top of). Despite my bringing it to the attention of the city, they didn’t even begin the process until January, when the commission was, under this section, to be seated.

Once it was brought to the council’s attention they weren’t sure how to form the commission. They asked the city attorney and I discussed the outcome in my previous post.

Deciding how the commission would be formed and making applications available took several months so the commission wasn’t seated until April of 2010, not January 2010 as mandated in the charter.

The charter review commission, like all city commissions and committees is subject to the Brown Act which mandates that all meeting agendas be posted prior to the meeting and that the public have the opportunity to address the commission on items to be voted on, or to make suggestions. In addition, there were a couple of public input meetings held at Ganesha Community Center.

I had the fortune to be among the original 15 persons appointed to this commission. At our first meeting, we were told, that despite the fact that we were trying to deal with the city’s main legal document (its constitution if you will) that we would not have a representative of the city attorney’s office at our meetings due to costs. The assistant city manager and city clerk were made available as staff resources. Very much later, when it became obvious that we were looking at significant changes to the charter, the city attorney did start coming to our meetings and argued against things as potentially illegal or would cause litigation that we had worked on diligently over many months.

The charter says specifically that whatever the citizen commission comes up with MUST be placed on the next ballot and the council may not change or block it. It was argued, when we made changes which were unpopular to some of the council, that the council could offer a competing charter amendment on the same ballot, while this is probably true, it would generate additional expense for the election and potential legal problems depending on how the vote went. Something for consideration.

The commission took each section of the charter, as well as ideas for new additions suggested by the whole commission and city staff, and created 4-5 member subcommittees (no subcommittee could have more than 6 members as defined by Brown Act) to study each item and come back with suggested changes. While the commission as a whole met monthly, many of these subcommittees met on a weekly or monthly basis themselves and all members of the commission were on several subcommittees, so would be meeting multiple times per month.

Based on this type of structure, this was not a commission for wimps. Some of us were attending as many as 8 meetings per month in order to come up with workable drafts.

One a subcommittee had created a draft of a section, the section would be brought to the entire 15 member commission for discussion and vote at a regular monthly meeting. It was determined that no section would move forward without a 75% affirmative vote.

Unfortunately, with the late start for the commission, the November 2010 elections and the seating of a new council in December, which came four months before the 1 year that the commission had to complete its work caused problems. Again, the city attorney weighed in and stated that the newly elected council members could remove and appoint their own members to the commission. This meant that after working on this project for 8 months, we now had new people who had no background it what had been done and we needed to get them up to speed.

Once the commission had come up with consensus of what should be included as changes to the charter, we started to look at how we would want it presented to the voters. Certain things we felt should be presented as separate ballot items while others could be combined. Again, the city attorney and city staff fought (I say this rather than suggested because suggested is way too mild) that we only have one ballot item citing the cost of putting items on the ballot, which was about $20,000 per ballot item if memory serves. The 15 members acquiesced and the entire amendment was created as one ballot item.

This actually did not serve the city well because the amendment was eventually defeated in the 2012 election. That meant that things that the city had asked for, where the city’s  actions are out of compliance with the charter or where state law had made the charter requirements out of compliance with state law, were actually DEFEATED by the people. As an example, the way that the charter requires cost of living to be determined is NOT the way the city does it, despite  the voters having voted against doing it the way the city does it.

My Suggestions for the 2020 Charter Review Commission.

1.      Start the process early. Make sure that by October 2019 or earlier that there is a process in place with nomination applications available by November 1 so appointments can be made before the end of December. It is really imperative that we have a commission in place by Jan. 1.

2.      Determine the size of the commission. I HIGHLY recommend that the council follows the charter and makes this a legitimate commission which is made up as required by the charter.

3.      Make it clear that, since the commission must submit its report by the first meeting in January, that commissioners, once appointed cannot be replaced unless there is a resignation or illness. Since it’s a one year commission, commissioners should be dedicated enough to follow through on it.

4.      Allow that there may be a need to have more than one ballot item, or the council should suggest a limit to the number of items to mitigate funding issues. Let’s be transparent here.

5.      Legal assistance should be provided by the city from the start of the process. And the city attorney should not try to bring undue influence on the commission but merely give legal advice.

6.      Make sure that applicants understand the time commitment for this very serious and special commission. If a 7 member commission is appointed, it may not be feasible for subcommittees as was done the last time, so there will probably need to be multiple meetings per month (remember we only have 12 months to review a document with 17 sections, and we may want to add additional).

What I’d like to see any charter review commission take up

1.      Changes to the section on the charter review commission to reflect the items that I noted above. Make sure that some future council or city attorney is not tempted to “interpret” the intent of the section.

2.      Based on what’s been happening in the past few weeks, ask for an RFP process for the City Attorney every 4 years. Regardless of whether they’re good or bad, in my opinion a review of cost and services will serve the city well in the future.

3.      Make the commissions stronger. There is a perception that staff prefers that commissions not be too strong. I think that citizen participation is vital and that commissions can have a vital role in the process. Create a process where if commissioners resign or seats become empty, that there can be a MUCH MORE timely manner of ensuring that commissions are filled. Also, do something to make it so that we don’t end up with the situation where historically some commissioners have missed as many as over half of the commission meetings in a year, causing “lack of quorum” cancellations. You can’t get ANYTHING done if you don’t meet.

4.      Clean up any irregularities within our charter. Let’s make sure that our charter and the way that the city does business is synchronized. Right now the city is doing a lot of things which are contrary to the charter. If there’s a reason, let’s fix the charter and make it a document that we will respect! Or, let’s fix how the city operates and make them operate within the charter.

I’m sure that there are others. I tried during the last round to get an Ethics Commission (fought by city staff and the city attorney) which didn’t get enough traction. We had also recommended a police commission which, given that the recent grand jury report (Aug. 2018) stated, “effective community relations and public trust can be earned through an open and accessible complaint process.” The grand jury noted that 44 of the 46 departments in the county do not have civilian oversight, and that this is a problem that should be “of great concern.” The creation of a citizens police commission should look to alleviating this problem. I’m personally in favor of these, and expect to advocate for them. As we get closer to the formation of the commission I’m sure that I’ll have other thoughts.

I know this is long and it’s not everything but I’ll be more than happy to answer questions from my perspective. Please leave comments here. I’m sure that those who will be appointed will probably be reading this as will those who appoint them.

In my next posting, after the holidays, I’ll be discussing the kinds of things the commission can, should, shouldn’t, and might want to, consider.

Charter Review, Post 1

Now that the recent election is over, we have seated the city council that will choose the members of the charter-mandated citizen’s Charter Review Commission. The last time there was a Charter Review Commission was in 2010. That was the first time that charter article XVII was activated. Because at that time there was no precedent, the council appeared to be a little confused as to how the commission was to be constituted. The city attorney, argued that the commission could be:

1) a commission made up of the members of the city council;

2) a 7 member commission like all other commissions, or

3) a commission of size that would be determined by the council.

Here’s what section XVII, section 1701 actually says about it:

Beginning in January of the year 2010, and in January of every tenth year thereafter, the Council shall appoint a Commission to consider and propose amendments to the existing Charter. No later than twelve (12) months from each inception, the Commission shall submit its proposals to the City Clerk for placement on the ballot at the next scheduled election

When this came up at council, I argued that 1) it was clearly not the intent of the framers of the charter section that the council act as the commission as they can make changes to the charter for submission to the voters at any time as outlined in

Article XVI, section 1601 (b) Amendments to this Charter may be proposed and placed on the ballot: by ordinance of the Council containing the full text of the proposed amendment and passed by five-sevenths (5/7) of the total membership of the Council.

2 & 3) that the charter clearly states:

Article VIII, section 801(a) All appointive boards and commissions shall have the same number of members as there are members of the Council. Each Councilmember within sixty (60) days of assuming office, shall appoint one member who shall be a resident of the City to each board or commission.

At that time, the city attorney argued (convincingly it seems, at least to the council at that time) that the commission set up in the charter wasn’t really a commission but was a “special committee” and so was not covered under section 801(a), so the council decided to make it a 15 member commission with each councilperson getting to appoint two seats and the mayor 3.

I still argue that the charter clearly calls this a commission and that section 801 clearly defines a commission.

What is a Charter?

Under California law, cities are either Charter Cities or General Law Cities. Most cities in the state are general law cities and the umbrella laws that cover their operation are set by the California legislature. This includes local cities such as Ontario, Claremont, La Verne, Chino Hills, etc.

Charter cities on the other hand have greater latitude in setting their own rules for how the city is run based on a “charter” which acts as a constitution of sorts and all actions within the city are required to follow the charter. A charter trumps state law when dealing with what the court calls “municipal affairs.” There are only 121 such cities in California (up from 86 in 2011). You can see the list here: http://www.cacities.org/Resources-Documents/Resources-Section/Charter-Cities/Charter_Cities-List. A lot of other information on Charter vs. General Law cities can be found at the League of California Cities website at: http://www.cacities.org/Resources/Charter-Cities.

Over the next several months, I’ll be posting my musings on the charter, how it can be strengthened, things that potential commissioners should consider, and the processes of the commission. In talking about the process, I’ll be looking at the way the 2010 commission handled things and lessons learned from that process.

Since the charter review commission must be established by January 2020, it is my hope that the council will take action as early as October 2019 to begin the process of putting the commission together. That gives them 11 months. I do hope that the mayor and all the council members will be made aware of this important process and not let it “fall through the cracks” as happened in 2010.